| Banguela v Babbo |
| 2008 NY Slip Op 04632 [51 AD3d 833] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Celia H. Banguela, Appellant, v Charles Babbo et al.,Respondents. |
—[*1] Martin, Fallon & Mullé, Huntington, N.Y. (Peter D. Garone of counsel), forrespondent Charles Babbo. Epstein & Grammatico, Hauppauge, N.Y. (Lillian M. Kennedy of counsel), for respondentJohn Barbely.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (R. Doyle, J.), dated March 14, 2007, which granted theseparate motions of the defendants Charles Babbo and John Barbely for summary judgmentdismissing the complaint insofar as asserted against each of them on the ground that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs, and the separate motionsof the defendants for summary judgment dismissing the complaint insofar as asserted againsteach of them are denied.
The defendants, separately moving for summary judgment, failed to meet their prima facieburdens of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inmoving for summary judgment, the separate defendants relied on the same submissions, whichincluded the affirmed medical report of Dr. Benjamin Nachamie, an examining orthopedist.While Dr. Nachamie set forth his findings with respect to the range of motion of the lumbar andcervical regions of the plaintiff's spine, he failed to compare those [*2]findings to what is normal, and therefore his report was withoutprobative value (see Page v Belmonte,45 AD3d 825 [2007]; Malave vBasikov, 45 AD3d 539 [2007]; Fleury v Benitez, 44 AD3d 996 [2007]; Nociforo v Penna, 42 AD3d 514[2007]). Since the defendants failed to meet their initial prima facie burdens, it is unnecessary toconsider whether the papers submitted by the plaintiff in opposition were sufficient to raise atriable issue of fact (see Page vBelmonte, 45 AD3d 825 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538[2001]). Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ., concur.